YouTube Channels Crippled By Copyright Claims

Numerous video game-related YouTube personalities have spent the last day digging through piles of copyright claims suddenly filling their inboxes, claims that they say are messing with their ability to produce and profit from videos they post online.

YouTuber Brad Colburn, whose TheRadBrad channel has some 1,943,317 subscribers, told Kotaku that he's been getting copyright notices for at least 24 hours. These claims potentially block him from earning advertising money for the hours upon hours of footage of games he posts online.

Some game publishers have been OK with people streaming and sharing their content. Others haven't been. But copyright claims tend to come and go. They don't usually hit in huge waves like this. Brad explained what he's been going through:

So basically I've been on YouTube since early 2010 and I've now got over 3,000 videos. On Monday I started getting emails from YouTube every time one of those 3,000+ videos got a third party match. I've had almost 75 videos hit with this. What it means is during a 15 minute video of me playing a game and doing commentary taking about MY life, a loading screen will have a 10 second audio clip of in game music. That's what gets claimed. Not the gameplay but composers of an in-game sound effect or song are doing the claiming. So now all my hours of recording, editing, uploading are used to give 100% of the revenue to that person instead of me.

Colburn has said that the volume of claims he's getting could "cripple" his channel. He's not alone there.

"Basically every game reviewer and Let's Player on YouTube is getting reamed with copyright matches right now," YouTuber Zach Scott told me. "I've had over 30 videos be pegged, mostly for music included in the game." Scott's ZackScottGames channel has nearly half a million subscribers on YouTube.

YouTube has used programs to crawl videos and sniff out copyrighted material before, but this week's sweep seems unusually aggressive and less specific.

"It seems to be the same ContentID system, except all of my matches seem heavily focused on audio and music," he said. "When Nintendo claimed my videos before, they seemed deliberate with no references to the claimed content. Now it is all automated, and it's affected about 2% of my uploads. Some are matched from songs Nintendo has cataloged themselves, whereas most are from 3rd party music licensing companies like Ingrooves, WMG, Loud Digital Network, etc. For example, most of my old Sim City videos have been claimed due to having music from an EA soundtrack. Some of my GTA V videos have been claimed for various music that plays in the background. This is weird because other than Nintendo, this is not the game publishers going after video creators. These are all music publishers and licence holders having their catalogue of work detected in Let's Plays by YouTube's ContentID system. Even some of my videos featuring royalty free music that I've bought and licensed myself have been claimed."

Scott shared this example, which shows one of his GTA V videos getting snagged because of a song played on one of the game's in-game radio stations:

We've reached out to YouTube to see what's going on with this. They haven't replied yet, but when they do, we'll let you know.

It seems, at least, that this is catching just about everyone off guard.

Game publisher Capcom, for example, whose Dead Rising 3 was featured in a Colburn video that was just flagged, posted the following to Twitter:

YouTubers: Pls let us know if you've had videos flagged today. These may be illegitimate flags not instigated by us. We are investigating.

Escapist reviews editor Jim Sterling has posted his own erudite take on what's going on and shared some ridiculous examples of his own videos being flagged this week. He pins more of this on the game publishers, so his experience may be a little different if no less eyebrow-raising.
YouTube videos of games are not without controversy. Some game publishers see Let's Play videos and other videos that show a lot of gameplay as some form of copyright infringement or at least as something that they should be the ones earning money from — as opposed to the people recording the videos. Others see the very same videos as some of the best free advertising a game can get. That controversy will only intensify as these kinds of intentional or accidental crackdowns occur, regardless of who they're from.

One YouTuber who we spoke to for this story said he's specifically avoided doing gameplay-heavy videos because he didn't want to have these kinds of hassles. When he's used footage, he's made sure to have permission from the publishers. Surveying what's been happening for the last day, he told me, "I feel like Neo dodging bullets in the matrix."

Actually reviews should be totally in the clear, they're quite definitively covered under fair use laws.

Let's plays are harder, you can argue that it's a form of critical review in which case it's covered. However you can similarly argue that it's main intent isn't to review but to display copyrighted content.

The example mentioned in the article where he's talking about his life does seem firmly in the latter, he's using copyrighted content to increase the profile of his blog essentially, it's like using Mickey Mouse in an newspaper as for a daycare. Pretty harmless but illegal.

Truth is there needs to be some court cases or legislation written to determine the legality for Let's Play videos, unfortunately YouTube is the only one with the leverage to make a stand and they seem content to side with big publishers.

Let's Plays without consent will never be legal. If you're making LP videos for profit for a game, you need to get permission from the publisher first, and agree to their terms, which will usually include a cut of the income. It's why networks exist, as they've negotiated the terms with the major publishers already and take the cut to pass on before the video creator gets their share.

I guess it is too bad that Australia doesn't have a concept of fair use in its copyright laws then :(

But even for Let's Play videos from US users, it's not clear they fit within the bounds of fair use. While there isn't a hard and fast definition of what constitutes fair use, some factors that are used to decide include whether the use is commercial, how much of the work is used, and the effect the use has on the value of the work.

Publishing a complete play through with commercial exploitation through Youtube ads probably isn't fair use, even if it has some commentary over the top. If the game is primarily story driven, the developer could legitimately claim that the video reduces the value of the work, since some people might watch the video as a substitute for buying the game.

In contrast, a review that only uses short segments of gameplay is pretty clearly fair use, even if it has ads.

I might be mistaking the name for the US version, but I was sure Australian copyright still protected use for education, review or satire.

And for the record, I'd tend to lean towards Let's Plays being illegal. At least enough that I wouldn't invest hours of my time creating a livelihood out of them without some written permissions, however it's still a legal grey area that is in need of defining.

Actually, fair use can still cover Let's Plays and Streamers, even if they do make money, because the copyright holder (in the US) must show that the LP or Stream is substituting as a market for their product, or is somehow costing them sales beyond any negative criticism the LP/Stream might generate.

Then there is the sheer inconsistency that publishers and developers have been going about their claims. They seem to be perfectly happy leaving up glowing reviews and LPs, but are very quick to attempt censorship of negative criticism. That would actually hurt any case in a court of law.

Though, the substitution thing might hurt LP/Streamers, if the copyright holder can successfully argue that people are not buying the game simply because they can watch it being played then it would be a substitution of the market, and not fall under fair use. The counter argument is that the LP/Streamer is providing commentary and an effective real time look at what the game is actually like so the consumer can make an informed opinion, which then makes it a review.

Monetization has nothing to do with whether it violates copyright. Monetization also has nothing do with whether it is covered under fair use. Reviews are always protected by fair use, even if they reproduce the copyrighted work in whole during the course of the review.

Publishers and developers are terrified this will go to court because they know they will have an uphill battle. That is why they like to work with scary cease and desist letters, and bribe legislators, because judges are not easily paid off with campaign contributions and lobbying efforts.

We do have a "fair dealing" provision in our copyright law, but it is based on tightly defined exceptions rather than a general test that can be applied to new ways of using copyrighted material or new types of copyrighted material.

For example, it was only in 2006 that it became legal to use copyrighted material under fair dealing for parody or satire.

Also, the Australian laws are fairly specific in what constitutes a "reasonable portion" of the work for fair dealing, being either a chapter or 10% of the work.

Thanks for the info, I think I need to do some more research on Australian Copyright laws. My knowledge seems to have been way too coloured by the US laws and I think I might have actually been taught those laws when I was at uni.

Any game company that gets cranky over copyright issues with a review is utterly \stupid. Not just slightly stupid, utterly stupid. How do games get most of their customers? Word of mouth and high ratings. Both of those are directly related to reviewing games, either from a friends experience or a gaming site/channel that tells and shows you about the game.
Youtube videos can and do make or break indie games, even bigger games (positive) reviews simply means more people buying your game. Does it matter that the reviewer gets 1c from playing and reviewing your game? Of course not! You will get the $10+ from the person watching actually buying your game.

On the other hand, lets plays are just something I can't understand. Watching people play games sounds really boring. Reviews are useful because it shows you if you should play the game. The only exception I make to this is when it is done like a story in a sandbox game, because then the purpose of watching it is for the story, not watching someone play the game itself.

They cannot profit from copying the game and selling those copies. I own my copy of the game and can do whatever I want with it. This is not the same as music or movies/tv shows. Those forms of media are selling the right to watch/listen. Games are sold to be played. If I wrote a song ( I don't write songs) and uploaded a vid to youtube of myself singing it, but was sitting next to my computer with a game I had been playing earlier up on the screen, is that copyright infringement? Should I be unable to profit from that video? What if you can just clearly see on my desk the box the game came in, is that copyright infringement? It's just ridiculous.

I can't speak for everyone, but I was under the impression that most people were like me, you watch a Let's Play for the commentary, not the gameplay. And I only watch those of games I already own, or am interested in possibly purchasing.

Well, Nintendo and Sega have just been added to my shitlist.
Capcom was already there, along with EA. And to be honest? I really haven't missed any of the games they've put out in the past year or two.

I can only hope they read the comments that will come from this and I hope many people join me.

I refuse to let your companies continue to profit at the expense of fair use and free speech. When you trample the rights of the consumer and try to bully journalists and paying customers in to getting your own way, you lose out on the respect you have built up over the years. I'm not boycotting your products. I'm just sick of your shit. You don't deserve my respect or my money.

Makes sense to me. I don't think people should be profiting off other peoples work. This is no different from movies/music CDs. If a movie/CD was posted on YouTube without permission on a channel that gets money from people viewing it then of course it should get taken down.

So retailers should not profit and gaming magazines an lets face it YouTube should not profit. Copying a game and giving it away costs developer lost revenue. Everything else is advertising. YouTube requires content to exist. It does not pay for the content but is happy to sell advertises banner space for it's site.

on the same token shouldn't the developer/publisher require the permission of the lets players (who's commentary makes up an equally bulk part of the content) in order to receive any sort of profit or benefit from the videos?

I'd be interested in seeing what happens if a developer uploads gameplay of their game with absolutely no commentary or input outside of the game itself, if they can do that and consistently pull in the same viewer count/revenue as someone who does commentary (from a similar demographic) then I think they have a valid claim to infringement because it would show someone is benefiting off their work, but if they can't consistently pull in similar numbers then it would seem to me like their claim someone is benefiting off their work is kind of moot because it would show that the commentary is what's bringing in the dosh and the game is simply facilitating it (sort of like how a fisherman can't sue a restaurant for cooking and selling their fish).

They all make profit with other people's work. Check out TB's channel and you will see how the process works. They ask the producer of a certain product for the "permission" to make a "WTF is..." or a "Let's play" like content.

It's just such a silly thing, this digital rights system. Lets say you buy a car, win a race and earn some money by doing so, then you don't have to pay the producer of the car anything. Then you buy a computer game, make a video about it and then I tell you that you are not allowed to make money with it, how dare I!

But there is also a difference between a review and just giving uploading a copy of the game. Reviews are short summaries that include screenshots or videos of small parts of the game, uploading a copy of the game is just piracy. Plus it's free advertising for the producer of the game, they shouldn't b complaining.

Nah man I'm sorry but just don't get it. There are people out there that make a living with what other ppl created. TG uses BMW M6 in their show to make money; the NGA uses the gold of Incas to make money, they show it to a large audience, why should TB not be allowed to monetize a Sega game by making a review.

You compare copying a content to creating new content and that is wrong; that is the core of the problem, what is original and what is new.

Commercial license is the fault here. AFAIK, there is no 'commercial subscription' that reviewers can sign up for. They need to get written permission on a case-by-case basis from the publisher, which is just not feasible.

E.g. Microsoft Office. If you purchased the student edition while at university, and you then proceed to use this in a small-business - that's illegal. However, get the correct license, and you're fine.

The real reason companies are going after these videos: they feel that some people would just watch an LP than buy the game. They are right on that count. But you know what? People are still going to make LPs, even if they can't monetize the video. The number of LPs will go down, sure, but people will still make them and they will still be watched.

The complication here is that the music has been licensed to the developer for use within the game. The LP videos could be seen as "re-transmission" of the original work outside of the agreement with the developer. Frustration would be compounded if the developers/publisher's permission was granted when they did not have the rights to grant permission to their licensed materials.
I see no real issue with the notices being sent out, but a mechanism needs to be sought so that those wishing to do the right thing aren't caught out like this in future. Perhaps a register of use?

This is actually why I turn off in-game music for my videos. It kind of sucks cause the music is very much an important part of the game - but you are much more likely to get permission from the game publisher to do Let's Plays than from the studio that produces the music.

Some game developers/publishers even have the information on their stance on Let's Plays in their ToS.

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